Outsourcing Research About Outsourced Authority

by Roger Alford

An astute reader forwarded this article to me about the role that the Library of Congress plays in assisting the Supreme Court and federal appellate courts in researching foreign and international law materials:

Despite harsh criticism of the citation of foreign law in American court decisions, the U.S. Supreme Court and the federal appellate courts solicit and are supplied with numerous studies surveying foreign law each year, according to the Library of Congress’s annual reports. The source of this scholarship is the talented staff of the Directorate of Legal Research (DLR), a little known but well-regarded and highly influential research department contained within the Library of Congress. DLR is a sister organization to the better-known Congressional Research Service (which itself has an American Law Division that produces legal studies on U.S. Law)…. While Senator Jon Kyl (R-Az), Justice Antonin Scalia and others have railed against the use of foreign law in U.S. Courts (the most heated objection is to the use of foreign law to interpret constitutional rights), U.S. courts and their jurists and clerks have in fact for many years relied upon the foreign law research reports produced by the DLR…. It is perhaps ironic that in a political environment where the Supreme Court of the United States and the federal appellate courts have been criticized for the practice of citing foreign law, the Legal Research Directorate is in the business of responding to requests for large quantities of foreign legal scholarship and analysis from the federal judiciary, including the Supreme Court, in addition to Congress and executive branch agencies…. Most of the publications are superb examples of comparative and international law scholarship on subjects of public interest and importance. Because the American common law system is fundamentally predicated on universal access to the documents describing the law, one would think that the research products of the DLR should eventually become accessible. That has not yet occurred, unfortunately, except for those few documents that have already entered the catalogue, and a half dozen sample reports posted on the DLR’s public GLIN website.

Just how often does the federal judiciary rely on the Library of Congress to research foreign and international material? According to the Library of Congress 2004 annual report “Law Library staff members responded to 165 research requests from judicial agencies. Among the major issues submitted by the judiciary were those related to foreign regulation governing election campaign financing and constitutional court decisions.” (p. 31) Thus, even in cases such as the campaign finance decision of McConnell v. FEC–a decision that did not cite foreign authority–it appears the Court considered foreign experiences in rendering its decision, and relied on the Library of Congress to provide that information.

Is it just me, or doesn’t it seem wholly inappropriate for the Library of Congress to not publicize the reports that they provide to the federal judiciary? When I clerked for the D.C. Circuit, as best I can recall our chambers relied on the materials provided by the parties and amici, as well as our own individual research (sometimes in the Library of Congress). I think the parties would have liked to know if we outsourced research reports about their case to another branch of government. I can understand reasons why the Library of Congress may not wish to make certain studies they provide to the executive or congressional branches publicly available if such studies implicate national security. But it seems inappropriate that the parties and the public cannot obtain reports the Library of Congress is supplying to the Supreme Court about matters such as foreign constitutional authority.

2 Responses

Maybe the courts should change their selection of clerks to include more clerks with capacity to do this type of research? Just kidding.

As you note the judge has clerks doing research. The judge seems to be expanding that notion of “clerks” to include the DLR providing backgrounders. The point at which these documents by persons outside the chamber start to look like expert’s report is not a clear one. It would seem to me that if a judge saw something in those reports that would influence them on the case, they would have a duty to provide the information to the parties so that the parties could brief it. Or at least the judge should raise the issue in oral argument so that parties might respond.

As to Congress, to the extent such reports are relevant to understanding the legislative history or deliberations it would seem they should be made available.

I am suspicious of the lack of cataloguing (at the Library of Congress no less!) of these reports. It smacks of a lack of transparency and some administrative resources should be put into organizing this area so it does not have this “hidden” feeling.

A final concern, how are persons designated to do the reports? The high caliber is noted in the article, but might I suggest that having those reports face the light of day would allow us to see whether Congress and the Courts reliance on this effort is wise?

Best,

Ben

11.22.2006
at 11:37 am EST Benjamin Davis

Ben,

I agree with you that “the point at which these documents by persons outside the chamber start to look like expert’s report is not a clear one.” Research librarians provide any number of services to their clients, ranging from locating obscure sources to writing reports. But when a research question comes to the DLR that results in a 56-page report on a subject such as wire tapping as evidence in court in Great Britain and the British Commonwealth of Nations, (see here), one would hope that the parties and the public could access that material.

Roger Alford

11.22.2006
at 12:13 pm EST Roger Alford

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